Media Reports Shine Light on Ohio’s Physician “Sexual Misconduct” Law and it is Broader than You May Know

This is the third alert in a series designed to inform physicians and other health care providers of what to do in the event of a State Medical Board of Ohio (“Board”) investigation, how to potentially avoid an investigation and what to expect during a license disciplinary case.

In a recent interview, the Board stated that it hopes the latest media attention on sexual misconduct by physicians will lead to increased awareness of the Board’s role in investigating and responding to such complaints.  In anticipation of a rise in complaints and inquiries from patients and other third parties, the Board plans to hire two more investigators and two more enforcement attorneys. The new additions will be investigating complaints related to physicians and other Board licensees who engage in sexual misconduct with patients.

Most physicians know that sexual assault is morally, ethically, and professionally wrong.  Still, many physicians are astounded to learn of the broad scope and sweeping interpretation of the Board’s rule regarding sexual misconduct.[i]

Sexual misconduct is defined by the Board as “conduct that exploits the licensee-patient relationship in a sexual way, whether verbal or physical, and may include expressions of thoughts, feelings, or gestures that are sexual or that reasonably be construed by a patient as sexual.”  Sexual misconduct includes sexual impropriety, sexual contact or sexual interaction.

The definition of sexual impropriety is quite broad and includes the following behavior:

• Neglecting to employ disrobing or draping practices respecting the patients privacy;
• Subjecting a patient to an intimate examination in the presence of a third party, other than a chaperone, without the patient’s consent or after such consent has been withdrawn;
• Making comments that are not clinically relevant about or to the patient, including but not limited to, making sexual comments about a patient’s body or underclothing, making sexualized or sexually demeaning comments to a patient, criticizing the patient’s sexual orientation, or making comments about potential sexual performance;
• Soliciting a date or romantic relationship with a patient;
• Participation by the licensee in conversation regarding the sexual problems, sexual preferences, or sexual fantasies of the licensee;
• Requesting details of the patient’s sexual history, sexual problems, sexual preferences, or sexual fantasies when not clinically indicated for the type of health care services; and
• Failing to offer the patient the opportunity to have a third person or chaperone in the examining room during an intimate examination and/or failing to provide a third person or chaperone in the examining room during an intimate examination upon the request of the patient.

Intimate contact with former patients can land a physician in the crosshairs of the Board.  Sexual contact that occurs within 90 days after the physician-patient relationship is terminated is still considered sexual misconduct by the Board. 

Most physicians know that an allegation of sexual impropriety or misconduct, even if false or embellished, can easily wreak havoc on a physician’s career.  Sometimes mere allegations can lead to termination of employment, loss of hospital and clinical privileges, regulatory investigations, reports to provider databanks like the National Practitioner Data Bank (NPDB), and/or malpractice claims.

Best practices:

• Consider making the use of chaperones an opt-out rather than an opt-in policy.  Offer a chaperone who is not a family member of the patient if an intimate examination is to be conducted.  An intimate examination is an examination of the patient’s pelvic area, genitals, rectum, breast, or prostate. If a patient refuses a chaperone, it should be documented in the record.  As a physician, you may decline to do an intimate examination if a patient refuses the use of a chaperone
   
• Communication. Convey to the patient why you need to conduct an intimate examination, including the differential diagnosis you are considering, and what the examination entails.  Again, these items should be documented in the record.
   
• Privacy, but not seclusion. Consider leaving the door open an inch or two and utilizing curtains.  This allows other medical staff to provide assistance, if necessary.  Likewise, examinations should only be conducted during normal business hours and in your normal place of business.  It will be difficult to explain why you performed an intimate examination of a patient after all other staff had gone home, or why you performed such an examination in your home or non-office setting.
   
• Wear gloves. Ohio law requires you to wear gloves during an intimate examination.  This creates not only a physical barrier, but also provides the impression that the physician is being professional.
   
• Utilize appropriate gowning and draping. Physicians should not move or remove patient clothing absent a documented emergency. If clothing needs to be removed, consider gowning and draping to maintain patient’s privacy.
   
• Develop and follow policies. Review polices from your employer and guidance materials from regulators and other authorities to ensure compliance with best practices.
   
• Avoid treating close friends or relatives. Do not prescribe medications, even non-controlled medications with no potential for abuse, to close friends, relatives, and of course, intimate partners.  Not only can this lead to standard of care concerns, but it can often also be characterized as a violation of Board’s sexual misconduct rules.  For example, the Board recently proposed disciplinary action against a doctor for prescribing non-controlled medications, including but not limited to antibiotics like amoxicillin, to the doctor’s romantic partner.  Importantly, the physician had already been in a long-standing relationship with the individual before the prescribing ever occurred.  Still, the Board charged this behavior as a violation of its sexual misconduct rules, even though the underlying situation might lack the sort of exploitation present in typical doctor-patient boundary cases.

The aforementioned guidelines are useful not only for physicians, but also for any health care providers who perform sensitive examinations.  This would include chiropractic physicians, nurse practitioners, and other allied health professionals.

Need assistance?  Dinsmore can help.  We are counselors and advisors experienced at drafting policies and procedures, conducting staff trainings, and guiding applicants and licensees from pre-investigation through disciplinary hearings and appeals.  Please contact Beth Collis, Dan Zinsmaster, Greg Tapocsi, or LaTawnda Moore for further information.